Funez et al v. E.M.S.P., LLC et al
Filing
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ORDER AND REASONS granting in part and deferring in part 11 Motion to Certify Class. Within twenty days of the entry of this Order and prior to distributing notice to potential opt-in plaintiffs, the parties shall submit a joint proposed notice to the Court along with an appropriate motion for the adoption of such notice. Signed by Judge Jane Triche Milazzo. (ecm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JESSICA MARILU ROSALEZ FUNEZ, ET AL
CIVIL ACTION
VERSUS
NO: 16-1922
E.M.S.P, LLC, EDWIN A. MIRANDA, ET AL
SECTION “H”
ORDER AND REASONS
Before the Court is Plaintiffs’ Jessica Marilu Rosalez Funez, Sulma
Hernandez, Candy Melissa Zamora, Julia S. Carballo, Dianna Mejia, Dilcia
Nunez, Karlina Molina, Lydia Vega, and Reyna Rodriguez’s Motion to Certify
a Collective Action Pursuant to Section 216(b) of the FLSA on behalf of
themselves and others similarly situated as well as a request to approve a
proposed notice to all putative collective action members. For the following
reasons, the Motion is GRANTED IN PART and DEFERRED IN PART.
BACKGROUND
Plaintiffs allege that they are former employees of Defendant E.M.S.P.,
LLC. Plaintiffs filed this lawsuit on March 6, 2016 on their behalf and on the
behalf of those similarly situated. Plaintiffs seek a collective action under the
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Fair Labor Standards Act (“FLSA”), alleging that E.M.S.P., LLC misclassified
Plaintiffs and those similarly situated as independent contractors and failed to
pay appropriate overtime wages.
Plaintiffs ask the Court to conditionally certify a class to proceed as a
collective action. Plaintiffs seek certification of a class including:
All individuals who worked for E.M.S.P., LLC at any time since March
6, 2013 and were classified as independent contractors
In addition to certification, Plaintiffs request: (1) approval of Plaintiffs’
written notice to all potential collective action members; (2) an Order requiring
Defendants to produce names, last known addresses, e-mail addresses, and
telephone numbers of all potential collective action members; (3) a 90 day optin period; and (4) that this Court allow the option to execute consent forms online through an electronic signature service.
LEGAL STANDARD
The FLSA allows one or more employees to pursue an action in a
representative capacity for “other employees similarly situated.”1 A collective
action affords plaintiffs “the advantage of lower individual costs to vindicate
rights by the pooling of resources.”2 Efficient resolution in one proceeding of
common issues of law and fact benefits the judicial system.3 The FLSA does
not define what it means for employees to be “similarly situated.”
Courts have utilized two methods for determining whether plaintiffs are
similarly situated, commonly referred to as the Lusardi approach and the
Shushan approach.4 The Fifth Circuit has not determined whether either
29 U.S.C. §216(b)
Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 170 (1989).
3 Id.
4 Mooney v. Aramco Services Co., 54 F.3d 1207, 1213–14 (5th Cir. 1995), overruled on other
grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 (2003).
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approach is required; however, the Eastern District of Louisiana has
consistently applied the approach first articulated in Lusardi v. Xerox Corp.,
118 F.R.D. 351 (D.N.J. 1987).5 This approach uses a two-step analysis. First,
at the “notice stage,” the court determines whether notice should be given to
potential members of the collective action, “usually based only on the pleadings
and any affidavits.”6 Because the court has little evidence at this stage, “this
determination is made using a fairly lenient standard, and typically results in
‘conditional certification’ of a representative class.”7
The second approach is articulated in Shushan v. University of Colorado,
132 F.R.D. 263 (D. Colo. 1990). Under this approach, a court applies the same
“similarly situated” inquiry as applied in Rule 23 class certification.
Accordingly, a court looks to “numerosity,” “commonality,” “typicality,” and
“adequacy of representation” to determine whether a class should be certified.
Under Lusardi, although the standard for certification at the notice
stage is lenient, courts generally require “at least substantial allegations that
the putative class members were together the victims of a single decision,
policy, or plan infected by discrimination.”8 “Courts determining whether
plaintiffs have submitted substantial allegations of a single plan have looked
to ‘whether potential plaintiffs were identified . . . whether affidavits of
potential plaintiffs were submitted . . . and whether evidence of a widespread
See, e.g., Xavier v. Belfor USA Group, Inc., 585 F. Supp. 2d 873, 876 (E.D. La. 2008);
Johnson v. Big Lots Stores, Inc., 56 F. Supp. 2d 567, 569 (E.D. La. 2008); Smith v. Offshore
Specialty Fabricators, Inc., 09-2985, 2009 WL 2046159, at *2 (E.D. La. July 13, 2009).
6 Mooney, 54 F.3d at 1213–14.
7 Id. at 1214.
8 Smith, 2009 WL 2046159, at *2 (quoting H&R Block, Ltd. v. Housden, 186 F.R.D. 399, 400
(E.D. Tex. 1999)).
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discriminatory plan was submitted.’”9 If the Court grants conditional
certification, the case proceeds as a collective action through discovery.10
After discovery, the defendant may move for decertification.11 At that
point, the court decides, with the benefit of considerably more information,
whether the employees are similarly situated.12 At this time, the court makes
a factual inquiry into whether plaintiffs are similarly situated. 13 Lusardi
applies a three-factor test to determine whether plaintiffs and potential
members of the collective action are similarly situated. Courts consider: “(1)
the extent to which the employment settings of employees are similar or
disparate, (2) the extent to which any defenses that an employer might have
are common or individuated; and (3) general fairness and procedural
considerations.”14
.
LAW & ANALYSIS
In their Motion to Certify a Collective Action pursuant to section 216(b)
of the FLSA and to Approve a Proposed Notice to All Putative Collective Action
Members, Plaintiffs request that this Court (1) conditionally certify this action
for purposes of notice and discovery; (2) order that the proposed judicial notice
be sent to all Putative Class Members; (3) allow for a 90-day notice period for
Putative Class Members to join the case; (4) order Defendants to produce
contact information for each Putative Class Member; and (5) to approve the
form, content, and delivery method of Plaintiffs’ proposed judicial notice.
Id.
Mooney, 54 F.3d at 1213–14.
11 Id.
12 Id.
13 Xavier, 585 F.Supp.2d at 878.
14 Johnson, 561 F.Supp.2d at 573.
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Defendants oppose these requests. This Court will consider each of these
arguments in turn.
I.
Conditional
Discovery
Certification
for
Purposes
of
Notice
and
Defendants argue that despite this district’s consistent use of the
Lusardi approach, the Shushan method is appropriate in this case.
Defendants present two arguments in support of this position.
First,
Defendants argue that the presence of retaliation claims made by five of the
12 plaintiffs renders the claims diverse, precluding class certification. Second,
they argue that certification should be limited to employees at Ochsner
facilities. These arguments are not persuasive, and the Court declines the
invitation to deviate from the Lusardi approach.
Five of the twelve named Plaintiffs have also asserted retaliation claims
against the Defendants and are seeking punitive damages in connection with
those claims. The presence of the additional retaliation claim is not a bar to
conditional class certification because Plaintiffs do not have to be identically
situated as long as class members are all alleged victims of an alleged policy
or practice.15 Therefore, this Court, as others in this District have, declines to
make an exception to well-established jurisprudence.16
Plaintiffs qualify for conditional class certification under the Lusardi
approach. In support of their contention, Plaintiffs have submitted twelve
affidavits along with their pleadings that allege Plaintiffs and Putative Class
Members were all misclassified as independent contractors and not paid
Crain v. Helmerich & Payne Int’l Drilling Co., 92-0043, 1992 WL 91946, at *2 (E.D. La.
April 16, 1992).
16 See Valdir Xavier, et al. v. Belfour USA Group, Inc., 585 F. Supp.2d 873, 876 (E.D. La.
2008) (declining to depart from the Lusardi method for certifying collective actions in this
District).
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overtime when working more than forty hours per week. Together, this
provides a sufficient basis to meet Lusardi’s lenient “similarly situated”
standard for conditional certification.
Defendants contend that class certification should be given only to
E.M.S.P., LLC employees who were employed as independent contractors at
Ochsner locations. While it is true that Plaintiffs do not present affidavits from
anyone employed outside of an Ochsner facility, at this stage of the case that
does not prevent certification for those employed outside of Ochsner. The
Plaintiffs and Putative Class Members performed similar work, and it is not
unreasonable, prior to discovery, to assume that the alleged policy was the
same at all locations.17 Therefore, conditional class certification will not be
limited to Ochsner sites at this time; however, the Court may decertify this
class if discovery produces no evidence of a company-wide policy that extends
beyond the Ochsner locations.18
II.
Judicial Notice and 90-Day Notice Period
Plaintiffs have submitted a proposed notice form to which Defendants
have objected. In keeping with precedent and common practice, this Court
finds that Plaintiffs and Defendants should meet and confer with regards to
the notice form.19 If parties are unable to agree on the language of the form
they shall each submit their proposal within 20 days of this Order.
See Lima v. International Catastrophe Solutions, Inc., 493 F.Supp.2d 793, 799–800 (E.D.
La. 2007) (holding that production of affidavits solely from class members employed by one
sub-contractor was not a bar to conditional certification for those employed by the same
company through different sub-contractors)
18 Id.
19 See e.g., White v. Integrated Electronic Section Technologies, INC., et al., 11-2186, 12-359,
2013 WL 2903070, at *9 (E.D. La. June 13, 2013).
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Plaintiffs request a 90 day time period after distribution of the notices
for interested Putative Class Members to file their consents with the Court.
Defendants have opposed this and contend that 30 days, or at the most 45, is
a sufficient time period. In similar situations involving Putative Class
Members, many of whom are Spanish speaking and many of whom may have
moved, courts have allowed a 90-day opt-in period.20 Additionally, courts have
previously held that a 90-day opt-in period is not prejudicial to the defense. 21
Therefore, a 90-day opt-in period is appropriate.
III.
Production of Contact Information and Delivery Methods
Counsel for Plaintiffs and Putative Class Members request that this
Court order Defendants to provide the names, current or last known addresses,
e-mail addresses, and phone numbers for current and former employees fitting
the description of the conditionally certified class. Defendants agree that if
conditional certification is granted they will produce the names and last known
addresses for similarly situated independent contractors and employees. They
object, however, to the production of phone numbers and e-mail address due to
privacy concerns. While this Court understands the need to protect privacy, in
cases such as this, the production of e-mail addresses is common practice and
Defendants are ordered to produce them.22 This Court does not find that phone
numbers are necessary for notice at this conditional certification stage.23
See Lopez v. Hall Collums Construction, LLC, 15-4113, 2015 WL 7302243, at *2, 7 (E.D.
La. November 18, 2015).
21 Lima, 493 F.Supp.2d at 804.
22 See, e.g., White, 2013 WL 2903070, at *9.
23 See Prejean, 2013 WL 5960674, at *10.
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Plaintiffs request that Putative Class Members be allowed the option to
execute their consent forms on-line through an electronic signature service.
Defendants oppose the use of electronic signatures, asserting that written
notice is the most reliable method to ensure integrity of the notice process.
Allowing electronic signature service is supported by precedent in this Circuit,
and this Court sees no reason to depart from this.24
Accordingly, potential class members may opt in to this collective action
if: (1) they have mailed, faxed, or emailed their consent form to counsel for the
class within 90 days after the notice and consent forms have been mailed out
to the class; or (2) they show good cause for any delay.
CONCLUSION
Plaintiffs’ Complaint is conditionally certified to proceed as a collective
action, defining the following class:
All individuals who worked for E.M.S.P., LLC at any time since March
6, 2013 and were classified as independent contractors
Defendants shall provide Plaintiffs with the names, current or last
known addresses, and e-mail addresses of potential collective action plaintiffs
within twenty days of the filing of this Order.
Parties shall meet and confer upon the notice and consent form to
potential opt-in plaintiffs. Within twenty days of the entry of this Order and
prior to distributing notice to potential opt-in plaintiffs, the parties shall
submit a joint proposed notice to the Court along with an appropriate motion
for the adoption of such notice. If the parties are unable to agree on a joint
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See White, 2013 WL 2903070, at *9 (collecting cases).
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proposed notice, Plaintiffs and Defendants shall each submit their proposal to
the Court within twenty days of this Order.
New Orleans, this 24th day of August, 2016.
____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
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